Rendition Case Enters 'Bizarre' Realms of Secrecy

by William Fisher

A prominent British-American lawyer who represents an Ethiopian-born Guantánamo detainee is charging that U.S. Defense Department officials are intentionally concealing evidence of his client's rendition and torture from President Barack Obama.

The lawyer is Clive Stafford Smith, director of the legal charity Reprieve. He says he sent a letter to Obama through the Defense Department detailing "truly medieval" abuse inflicted on Binyam Mohamed, but that much of it was blacked out, preventing the president from reading it.

In the letter to the president, Stafford Smith urges Obama to be aware of the "bizarre reality" of the situation. "You, as commander in chief, are being denied access to material that would help prove that crimes have been committed by U.S. personnel. This decision is being made by the very people who you command."

The central figure in this British case is the same Binyam Mohamed who appealed a separate U.S. case, on behalf of himself and four other terror suspects, to the U.S. Circuit Court of Appeals in San Francisco last week.

In that case, government lawyers from the Obama administration sought a decision not to reinstate a case that was thrown out by a lower court last year because government lawyers argued successfully that allowing the case to go forward would jeopardize U.S. national security.

In opposing reinstatement of the case, Obama's lawyers used the same "state secrets" privilege used by Bush lawyers in the original case. The appeals court has not yet ruled in the case, which charges that a subsidiary of the Boeing Company, Jeppesen Dataplan, knowingly provided aircraft and logistical services to facilitate the Central Intelligence Agency's rendition of Mohamed to overseas prisons where he was tortured.

The letter and its blacked-out attachment were disclosed as two high court judges agreed to reopen the court case in which Mohamed's lawyers, the Guardian newspaper and other media are seeking disclosure of evidence of alleged torture against him.

Mohamed's lawyers are challenging the judges' gagging order, claiming that David Miliband, the foreign secretary, changed his evidence. The attachment is titled "Re: Torture of British resident Binyam Mohamed by US personnel." The entire body of the memo and the name of its recipient are also redacted.

Stafford Smith told IPS in an email exchange that his letter to President Obama speaks for itself. He says he doesn't know who redacted the materials he submitted to the Defense Department.

In a judgment last week, British Lord Justice Thomas and Mr. Justice Lloyd Jones stated repeatedly that Secretary Miliband claimed the U.S. had threatened to stop sharing intelligence with Britain if information relating to Mohamed's alleged torture was disclosed. Miliband subsequently denied the U.S. had applied such pressure, but a U.S. State Department spokesperson thanked the British government for respecting the confidentiality of shared intelligence. The British case will be reopened next month.

Stafford Smith's letter to Obama says: "I am writing with great urgency concerning the rendition and torture of a Guantánamo Bay prisoner represented by our charity. His name is Binyam Mohamed, and he is a British resident."

"You will doubtless have been informed about Mr. Mohamed's torture – he was abused in truly medieval ways over a period of more than two years in Pakistan (at the behest of the U.S.), then again in Morocco (where he had been rendered by the CIA), and then in the Dark Prison in Kabul. There has been a firestorm in the media of our closest ally, the United Kingdom because, according to two British judges, the Bush Administration 'threatened' to withdraw national security cooperation with the UK if the judges ordered the release of materials concerning the torture of Mr. Mohamed in U.S. custody."

"The British judges bowed to this 'threat' – but suggested at the end of their Judgment that your administration might reconsider the position taken by your predecessors....

"Since we, at Reprieve, are U.S. lawyers with appropriate security clearances, we have access to this classified material. We have therefore assembled a memorandum that collates the evidence of torture in question. It is attached...for now, to deal with the British judges' request, we are submitting this information to you with no reference to any agent's name, or even the location of the abuse. Thus, as the British judges suggested, there is nothing in the memo that divulges material that should be considered classified."

"We are submitting this letter and attachment to the Privilege Review Team established by the Department of Defense to deal with these issues...If the DOD is unwilling to forward this material to you, then we will send you only what we are allowed to send you – which will be a copy of this letter and a redacted version of the memo illustrating the extent to which it has been censored."

Earlier, Mohamed's U.S.-appointed military lawyer told a press conference that his treatment "would make waterboarding seem like child's play."

The Guardian newspaper reported that Stafford Smith and his military lawyer last week met in private with members of the British intelligence and security committee, the group of MPs and peers facing mounting criticism in Westminster over claims it failed to effectively scrutinize the activities of MI5, the British intelligence agency.

Stafford Smith said he told the committee it would have been "absolutely impossible" for it to have cleared MI5 of involvement in the torture of Mohamed had it seen 42 key documents in the case – as he has – that Miliband says cannot be released for reasons of national security.

Binyam Mohamed is a 30-year-old Ethiopian who was granted political asylum in Britain in 1994. In 2002, he was seized by Pakistani authorities and turned over to U.S. intelligence officials in connection with the Bush administration's extraordinary renditions program. He was shuttled between CIA-operated facilities in Afghanistan, Pakistan and Morocco.

During this period of U.S.-sponsored detention, according to court papers, Mohamed was "routinely beaten, suffering broken bones and, on occasion, loss of consciousness. His clothes were cut off with a scalpel and the same scalpel was then used to make incisions on his body, including his penis. A hot tingling liquid was then poured into open wounds on his penis where he had been cut. He was frequently threatened with rape, electrocution, and death."

Mohamed, who had been scheduled for release from Guantánamo shortly, has been on a hunger strike for the past month. He is reported to be close to death.